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2021 DIGILAW 123 (GUJ)

Poonam Kishor Dhongani v. Atik Bhinesh Desai

2021-02-11

BIREN VAISHNAV

body2021
JUDGMENT : 1. All these revision applications have been filed by the original defendant No.4 in Special Civil Suit Nos.624/2014, 625/2014 and 626/2014 wherein their applications under Order VII – Rule 11 of the Code of Civil Procedure, 1908 were rejected by the 17th Addl. Senior Civil Judge, Vadodara by an order dated 6.2.2019 passed below Exh.15 in the respective suits. 2. Facts in brief are as under (For the purposes of the facts, facts from Civil Revision Application No.284/2019 are considered): * The applicant was the original defendant No.4. The respondent No.1 had filed Special Civil Suit No.624 of 2014 before the Court of 17th Addl. Senior Civil Judge, Baroda against the present applicant and other three defendants. It was the case of the plaintiff that the suit land was of the original ownership of one Jayesh Natvarlal Patel, respondent No.3 herein. According to the plaintiff, respondent No.1 herein, he and Jayesh Patel had entered into a partnership in the name of Satya Developers. The development agreement was entered into. The case of the plaintiff was that the respondent No.2 during the course of partnership, keeping the plaintiff respondent No.1 in the dark, executed certain documents, did not manage the partnership properly though he was engaged as a partner due to his proficiency and accounting etc and therefore committed breach of trust in the partnership firm. The case of the plaintiff in the suit was that though the partnership was entered into on 14.12.2017 for development of several projects on the land in question including the suit project, without the consent of the plaintiff – respondent No.1, respondent No.2 unauthorizedly executed a registered sale deed dated 18.5.2011 by which he sold flat 1/A, on the First Floor of 'A' Wing to the defendant No.4, the applicant of the Civil Revision Application. * It was the further case of the plaintiff on the reading of the plaint that since a fraud was committed by the defendant No.2 - Respondent No.1 partner Jayesh Patel, assignment deeds were entered into by and between the plaintiff – respondent No.1 and the respondent No.2 – Jayesh Patel, wherein by virtue of those deed of assignments dated 12.1.2012, 22.4.2013, 21.6.2013 and 22.7.2013, the respondent No.2 – defendant No.2 partner had agreed that he would get the sale deed nullified. Since he did not adhere to these deeds of assignment, a notice was issued on 8.2.2014 and on having failed to do so, the plaintiff - respondent No.1 in the CRA was constrained to file the present suit on 4.12.2014. On filing of the suit, the present applicant who was the original defendant preferred an application under Order 7, Rule 11(a) of CPC on 21.1.2015 contending that the flat was sold by the defendant No.2, admittedly, by the plaintiff to the applicant, defendant No.4 for a sale consideration of Rs.16,00,000/- on 18.5.2011. The defendant No.4 – applicant was in the exclusive ownership and occupation of the property. Admittedly, even according to the plaintiff, the partnership was dissolved on 12.1.2012, post the sale of the flat in favour of the defendant No.1. It was, therefore, the case of the applicant herein that the deed of assignment of which specific performance was sought, were in collusion with the defendant Nos.1 to 3. It was the further case of the applicant of the order 7 – Rule 11 application, the present civil revision applicant since what was prayed for was to set aside the sale deed dated 18.5.2011, as per Article 59 of the Limitation Act, the suit ought to have been filed on 17.5.2014, whereas, the suit was filed by the plaintiff on 3.12.2014, beyond a period of three years, and therefore the suit was barred by limitation and the plaint ought to be rejected. * By the impugned order dated 6.2.2019, the learned Judge rejected the application under Order VII – Rule 11 of the CPC observing that though the registered sale deed is of 18.5.2011, the plaintiff came to know about the fact on 12.1.2012, the suit was filed on 4.12.2014 within a period of three years and, therefore the suit could not be held to be time barred. The learned Judge further observed that whether the sale deed was executed by the defendant No.2 under the authority was a fact that could only be decided by leading evidence and accordingly, the application was rejected. 3. Mr. S.P. Majmudar, learned counsel has appeared for the applicant and submitted as under: * Mr. Majumdar would submit that admittedly from the averments made in the plaint especially in para 2 thereof, it was admittedly a case where what was challenged was the sale deed which was registered sale deed on 18.5.2011. 3. Mr. S.P. Majmudar, learned counsel has appeared for the applicant and submitted as under: * Mr. Majumdar would submit that admittedly from the averments made in the plaint especially in para 2 thereof, it was admittedly a case where what was challenged was the sale deed which was registered sale deed on 18.5.2011. It was a settled position of law that from the date of knowledge, the period of limitation would begin to run as the date of registration was deemed knowledge. He would further submit that a mere vague allegation of fraud was made in the plaint which did not absolve the plaintiff of coming out of the period of limitation and, therefore, the suit was admittedly time barred. He would further submit that the order of the learned Judge holding that it was a matter of evidence, was unwarranted. He would also submit that merely by mentioning the word “fraud” in the plaint, the issue would not become triable particularly when there were no averments made with respect to the fraud being played and the plaint being vague, vexatious, engineered and cleverly drafted, ought to have been rejected. * In support of his submissions, Mr. Majmudar relied on the decision in the case of Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs reported in 2019 SCC Online SC 372. He would rely on paragraph Nos.28-30 of the judgment to indicate that even it is held by the Supreme Court that when admittedly the suit when the document that was challenged, was registered document, a suit filed beyond the period of limitation ought to have been rejected. * He would also rely on the decision of the Supreme Court in the case of Dilboo (Smt) (Dead) by LRs v. Dhanraji (Smt.) (Dead) reported in 2000 (7) SCC 702 , paragraph 20 thereof in support of his submission that in absence of any averment of proof to show that the suit is within time, it is the plaintiff who would fail. According to Mr. Majumdar whenever a document is registered the date of registration becomes the date of deemed knowledge. The party cannot be allowed to extend the limitation by merely claiming that he had no knowledge. According to Mr. Majumdar whenever a document is registered the date of registration becomes the date of deemed knowledge. The party cannot be allowed to extend the limitation by merely claiming that he had no knowledge. He would submit that this decision of the Supreme Court has been followed in the case of Kanjibhai Bhagwanjibhai Patel v. Nanduben Shamjibhai Sorathiya reported in 2013 (1) GLR 51 . He also relied on a decision of Becharbhai Jhavebhai Patel v. Jashbhai Shivabhai Patel reported in 2013 (1) GLR 398 . Mr. Majmudar would also rely on the decision in the case of Mohanbhai Maganbhai Patel v. Miral Vallabhbhai Surani reported in 2016 SCC Online Guj. 8146, wherein, in paragraph Nos.9.3 and 9.4, the Court had considered the decisions in the case of Kanjibhai Bhagwanjibhai Patel (Supra), Becharbhai Jhavebhai Patel and Dilboo (Smt) (Dead) by LRs (Supra) holding that the date of knowledge of the registered sale deed, was the date on which the limitation would begin to run. 4. Mr. Udayan P. Vyas, learned counsel appearing for the original plaintiffs would invite the attention of the Court to para 19 of the plaint on page 24 to submit that it was specifically stated in the plaint that the cause of action had arisen on 22.4.2013, when a registered assignment deed was entered into between the plaintiff and the defendant Nos.1, 2 and 3 and prior thereto on 12.1.2012 and thereafter on 21.6.2013 and 22.7.2013 by which the defendant Nos.1, 2 and 3 had specifically entered into an assignment deed by which they had assured the plaintiff that they would get the registered sale deed which was a subject matter of challenge in the plaint, cancelled. Therefore, Mr. Vyas would submit that the prayer in the suit was not only for cancellation of the registered sale deed dated 18.5.2011 but also was for specific performance of an assignment agreement entered into on 22.7.2013. He would invite the attention of the Court to page 109 of the paper book and submit that that deed of assignment / kabulatnama was entered into on 22.7.2013 vis-à-vis the defendant No.4 of special civil suit No.624, 625 and 626 of 2014. 5. Mr. He would invite the attention of the Court to page 109 of the paper book and submit that that deed of assignment / kabulatnama was entered into on 22.7.2013 vis-à-vis the defendant No.4 of special civil suit No.624, 625 and 626 of 2014. 5. Mr. Udayan P. Vyas would rely on the decision in the case of Madhav Prasad Agrawal v. Axis Bank Limited reported in 2019 (7) SCC 158 , paras 10 to 14 and submit that the plaint has to be either rejected as a whole or not at all. It cannot be a case where a part of the plaint is to be rejected and a part is to be accepted. He would submit that defendant No.4 had come forth to file an application under Order VII Rule 11 and, therefore, the learned trial Judge was right in rejecting the application. 6. Having considered the submissions made by learned advocates for the respective parties, perusal of a plaint would indicate that it is the case of the plaintiff before the trial Court that he had entered into a partnership with the defendant No.2 for setting up a scheme. Having found that the defendant No.2 / respondent No.2 in the CRA had committed a breach of trust inasmuch as the partnership accounts were not being given, he walked out of the partnership on 12.1.2012. It was at this stage that he was made aware that the defendant No.2 as a partner had entered into a registered sale deed on 18.5.2011 in favour of the defendant No.4 by which he had sold one of the flats of the 36 flats, which property came to the share of the plaintiff by way of his release from the partnership. The case of the plaintiff therefore was that the sale deed dated 2011 was entered into by the defendant No.2 partner with the defendant No.4 / applicant of this CRA without his knowledge and was fraudulent. The plaint did not stop there. Further as is evident from reading para 19 of the plaint in the cause of action, it is evident that it is the case of the plaintiff that the defendant Nos.1 to 3 thereafter entered into Kabulatnama dated 22.7.2013 with the plaintiff agreeing that they would ensure that the registered sale deed dated 18.5.2011 would stand cancelled and they would take appropriate steps to do so. That is evident from the reading the contents of the document at page 109. Since that was not done, the plaintiff was constrained to issue a notice on 8.2.2014 and, thereafter filed a suit on 4.12.2014. 7. It is under these circumstances that the learned Judge while rejecting the application under Order VII Rule 11 came to the conclusion that the suit was filed within the period of limitation of three years from the date of knowledge of 12.1.2012, as a suit was filed on 4.12.2014. The date of suit as the date of limitation would therefore in the perception of the applicant being 17.5.2014 was incorrect. In addition thereto, apart from setting aside the sale deed since it was for specific performance of the kabulatnama of 2013, the suit was not time barred. 8. As far as the decisions relied upon by Mr. Majmudar is concerned, as is evident from the of Raghwendra Sharan Singh (Supra), the Supreme Court was considering a challenge to the gift deed 22 years after the gift deed was made. As far as the decision in Dilboo (Supra), Kanjibhai Bhagwanjibhai Patel (Supra) and Becharbhai Jhavebhai Patel (Supra) is concerned, there can be no dispute on the proposition of law that the date of knowledge is deemed to be from the date of registration of the sale deed but in the present case, when it has come to the knowledge of the plaintiff on 12.1.2012 and also particularly when it is his case that the plaint is not only for cancellation of the sale deed but for specific performance of deed of assignment of 2013, it cannot be said to be a case of clever drafting and / or vague pleadings on the question of fraud. The suit therefore cannot be dismissed or the plaint cannot be rejected under Order 7 Rule 11 (d) of the Code. 9. Even when the question of law is considered as held in the decision in the case of Madhav Prasad Agrawal (Supra) of which para 10-14 are reproduced hereunder, what is evident is that the plaint was based on twin counts (a) cancellation of sale deed and (2) for specific performance. 10. 9. Even when the question of law is considered as held in the decision in the case of Madhav Prasad Agrawal (Supra) of which para 10-14 are reproduced hereunder, what is evident is that the plaint was based on twin counts (a) cancellation of sale deed and (2) for specific performance. 10. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) of CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power Order 7 Rule 11 (d) of CPC. Indeed, the learned Single Judge rejected this objection raised by the appellants by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in the case of Sejal Glass Limited (supra) is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) of CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the director’s 14 defendants 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against defendant No.1 company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) of CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant and/or properties, Order 7 Rule 11(d) of CPC will have no application at all, and the suit as a whole must then proceed to trial. 11. In no uncertain terms the Court has held that if the plaint survives against certain defendant and/or properties, Order 7 Rule 11(d) of CPC will have no application at all, and the suit as a whole must then proceed to trial. 11. In view of this settled legal position we may now turn to the nature of reliefs claimed by respondent No.1 in the notice of motion considered by the Single Judge in the first instance and then the Division Bench of the High Court of Bombay. The principal or singular substantive relief is to reject the plaint only qua the applicant/respondent No.1 herein. No more and no less. 12. Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) of CPC on account of non compliance of mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 of CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. In that sense, the relief claimed by respondent No.1 in the notice of motion(s) which commended to the High Court, is clearly a jurisdictional error. The fact that one or some of the reliefs claimed against respondent No.1 in the concerned suit is barred by Section 34 of 2002 Act or otherwise, such objection can be raised by invoking other remedies including under Order 6 Rule 16 of CPC at the appropriate stage. That can be considered by the Court on its own merits and in accordance with law. Although, the High Court has examined those matters in the impugned judgment the same, in our opinion, should stand effaced and we order accordingly. 13. Resultantly, we do not wish to dilate on the argument of the appellant about the inapplicability of the judgments taken into 16 account by the Division Bench of the High Court or for that matter the correctness of the dictum in the concerned judgment on the principle underlying the exposition in Nahar Industrial Enterprises Limited Vs. 13. Resultantly, we do not wish to dilate on the argument of the appellant about the inapplicability of the judgments taken into 16 account by the Division Bench of the High Court or for that matter the correctness of the dictum in the concerned judgment on the principle underlying the exposition in Nahar Industrial Enterprises Limited Vs. Hong Kong and Shanghai Banking Corporation to the effect that the DRT and also the appellate authority cannot pass a decree nor it is open to it to enter upon determination in respect of matters beyond the scope of power or jurisdiction endowed in terms of Section 17 of the 2002 Act. We leave all questions open to be decided afresh on its own merits in accordance with law. 14. A fortiori, these appeals must succeed on the sole ground that the principal relief claimed in the notice of motion filed by respondent No.1 to reject the plaint only qua the said respondent and which commended to the High Court, is replete with jurisdictional error. Such a relief “cannot be entertained” in exercise of power under Order 7 Rule 11(d) of CPC. That power is limited to rejection of the plaint as a whole or not at all.” 10. The plaint as held by the Supreme Court cannot be bifurcated and rejected in part and proceed further for the other. The Court held that it is not permissible to reject a plaint qua any particular portion of a plaint including against some of the defendants and continue the same against others. If the application Order VII - Rule 11 of the defendant No.4 in the present case has to be accepted then it would amount to suit proceedings against defendant Nos.1 to 3 and not proceeding against defendant No.4 that is not warranted under Order VII - Rule 11 of the Code. What the Supreme Court observed in para 12 of the judgment is that in other words, the plaint as presented must proceed as a whole or can be rejected as a whole and not in part. If the submissions of Mr. Majmudar were to be accepted, it would amount to proceeding of plaint in part and, therefore, his submissions need not be accepted. 11. If the submissions of Mr. Majmudar were to be accepted, it would amount to proceeding of plaint in part and, therefore, his submissions need not be accepted. 11. For the aforesaid reasons therefore, I am of view that no error has been committed by the trial Court in rejecting the application of the defendant No.3 - applicant herein and, therefore, all the Civil Revision Applications are dismissed.